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November 6, 2020

Remote justice – a view of the pros and cons from an anonymous judge

This week’s guest blog is from an anonymous district judge who sits in civil and family courts:

Roll back a year or so and as a bench we remained concerned with the trajectory that HMCTS was on when it came to their push on remote hearings. The early impetus of reform on this particular issue had slowed but we were fully aware that it was something that was seen as cost effective in the eyes of those holding the purse strings for the justice system.

A year on and with several months now of working remotely, has our view changed? No – and yes. Is this not an answer which is contradictory? Yes – and no.

The answers lie in both the experience of remote hearings, and the impact on both the participants and the court system.

Final hearings aside, before the initial lockdown a typical day in the life of a DJ would be a block list which would have built into it a margin for applications/cases settling, no shows, or simply ineffective hearings for a variety of reasons. Lists were packed but generally manageable. Despite that, cases/applications were still stretching far in to the future.

Remote hearings, video or telephone cannot have the same level of listing. Fewer cases per day, longer waits therefore for hearing slots. Impact on professionals, negligible. Impact on parties, frustrating/upsetting/ annoying.  Points that are often lost in those that promote remote hearings is this domino effect, and how it adds to the stress of litigation, of whatever nature, to the lay party.

So, what of the actual hearing experience? The truth is that we have become far more used to the remote options available, whether BTMeetMe, Microsoft Teams or the apparently soon to be replaced, much vaunted, CVP. It’s not actually as bad as we thought it would be. Hold on. Can that be true? Is this a District judge who says that remote hearings are ok? As above, yes – and no.

It must be acknowledged that some hearings lend themselves to remote hearings – straightforward case managements, procedural applications, Stage 3 personal injury claims among some of those that can work. The common theme of those, however, is that they are lawyer led, in the main, and do not involve much party engagement. With the caveat explained above regarding wait times, there is probably no good reason to have lawyers using up time travelling to and from courts.

However, once the involvement of the litigants is a critical factor in the hearing, the experience for all involved changes.

Many colleagues have reported the unruliness of some litigants engaging remotely. Some seem to become emboldened by not being in the same room as the judge. They are on their own territory, albeit ‘in’ a hearing. It’s as if they don’t have to be told what to do or how to act in their own environment. You are invading their space as opposed to them coming in to your world.

We have also had to deal with parties at home with children running about (I actually had one where it was the Cafcass officer’s child causing a nuisance in the background), in queues outside shops, or at their place of work and still working (“excuse me while I serve this customer”). One colleague had a hearing with a cabbie driving a fare. Sometimes the parties are forced outside into the open air to engage, with background noise and other distractions. Not for everyone the comfort of a book lined study or office.

In the early days, one of my colleagues talked of having a mother in a care case sobbing throughout in his ear, when ordinarily there would have been court space separating them. Another spoke of a video hearing where a baby was being removed from the young mother and the baby was in the adjoining room to her at the time, crying.

There is also the loss of the significance of a court hearing. As one District Judge said, there is a lack of solemnity – hearings until now did not start with the judge being asked to wait ‘while I pull over’. Rather than a hearing, it’s a telephone call or a video chat. With the latter it is difficult to gauge how much someone is actually listening as their eyes are not on you to listen and react, but fixed rigid on a screen, unmoving and showing little or no emotion. Serious decisions are being made or serious consequences are being discussed, ie costs implications on an interlocutory matter, and it is so difficult to be satisfied that the litigant appreciates what is happening. As well as not engaging with the judge, if represented they are not engaging with their advocate.

On the flip side to being emboldened is the litigant who lacks the confidence to say anything to a screen (not you) or say anything on a phone, whereas if they are in front of you it is easier to tease out of them any uncertainty or lack of understanding that they have.

With all that I have said I have not even touched upon the connectivity issues. The poor IT provision we have. The lack of technical support. In the last weeks or so, in my home court, two CVP hearings listed before deputies failed to go ahead as there were no members of staff in with the training to administer the hearings. We have also had one CVP system out of action for a while and no engineers available to come out and fix the problem. There have been regular server issues limiting document access in the court buildings. And then there are the litigants, not all, by a long way with the technical know-how nor equipment to access a video hearing. Smartphones are only as good as the data/wifi package they come with. Even then, doing a video hearing on a phone screen is far from ideal.

Remote hearings have undoubtedly also added to the pressures of the job. They are more tiring to adjudicate upon. They are less predictable in how they will proceed in terms of both content and technology. There is no usher able to provide information on party moods, be it anger/anxiety. That does not assist with our mental preparation. The camera goes on, the phone is answered and we have no idea what we are likely to see or hear from those with pent up anger, or deep-rooted fear until that very moment.

As the professionals in the equation, judges or advocates, we can become used to a new way of working and we may become more resilient, but for the parties this may be their one and only court hearing. This is their one and only chance to participate, to engage, to understand, and it would be the height of arrogance on behalf of those in the court system to say that all is well with a remote way of working – even with seemingly straightforward cases. Straightforward to those practised in the peculiarities of the law and the court system, but not for the one-off court users.

We need to tread carefully with how we use remote hearings post-Covid and, as judges, retain the control to decide what can and cannot work best given the nature of the case, the nature of the immediate issue being adjudicated and above all the nature of the parties involved.

This blog is by an anonymous District Judge

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